Law Society of Zimbabwe’s model constitution now included in Sokwanele’s online constitution resource

Visitors to our site are now able to browse through this lengthy document, section by section, easily comparing its clauses on key constitutional issues with the clauses provided by other key documents also included in our resource. The resource provides browsing and comparisons accross the following texts:

* Law Society of Zimbabwe – Model Constitution (October 2010)

* Constitution of Zimbabwe (at 13th February 2009)

* Amendment 19 – Act No. 1 of 2009

* Kariba Draft Constitution – 2007

* National Constitional Assembly Draft Constitution – 2001

We encourage you to visit http://www.sokwanele.com/zimbabweconstitution to learn more.

Foreword to the Law Society’s Model Constitution by the President of the Law Society of Zimbabwe

More than a year ago, in February 2009, the Council of the Law Society of Zimbabwe decided to participate in the constitution-making process which began with the signing of the Global Political Agreement and is continuing today.

The Council’s decision was taken after careful deliberation. The Law Society represents all the lawyers in Zimbabwe. Its role, under section 53 of the Legal Practitioners Act, is to represent the views of the legal profession and to promote reforms in the law. There can be no greater reform in the law than the preparation of a new constitution, and the Law Society and its members have a vital interest in the process: the new constitution will determine whether and to what extent human rights will be respected in Zimbabwe, whether the judiciary will be independent, and whether lawyers will be free to protect their clients’ rights and interests; in short, whether the rule of law will be maintained. Moreover, the Law Society is in a unique position to aid the constitutional process. It is a non-political body, so its decisions are not affected by partisan politics. Through its members it is the greatest repository of legal skills in the country, and through its contacts with other professional bodies it can call on legal expertise from elsewhere in the region.

All this persuaded the Council that the Law Society should take the lead in putting forward proposals for the new constitution. These proposals, the Council considered, would be best presented in the form of a draft constitution.

The Law Society began the process by discussing constitutional issues with its members at the Winter School in July 2009. In August that year the Society commissioned researchers to study the 17 thematic areas that had been identified by an All-Stakeholders’ Conference organised by the Constitutional Parliamentary Select Committee (COPAC). After much work and debate, these themes were discussed at a conference held concurrently with the Society’s Summer School in 2009. Assisting in these debates and discussions were constitutional experts from inside and outside Zimbabwe. Of these I should particularly mention and thank Professor Christina Murray of the University of Cape Town, Professor Jeffrey Jowell Q.C., Mr Patrick M. Mtshaulana a South African advocate and Mr Mkhululi Nyathi. Their expertise and guidance were invaluable in developing and refining the Society’s proposals.

Next, the Council engaged a group of drafters from amongst its members to capture the views that had been expressed and to encapsulate them in a draft constitution. The draft they produced was discussed further at a conference in May this year and was further refined as a result of the opinions and suggestions put forward at that conference.

The result is the draft constitution which I present today.

In preparing this draft, the Law Society has tried to produce a constitution that will create a binding social contract between all the people of Zimbabwe, one which will take account of the country’s past and its present, and will endure to shape future generations.

The draft seeks to entrench multi-party democracy in Zimbabwe, with significant power devolved to the provinces. A strong Declaration of Rights and a clear separation of powers will protect peoples’ freedom against encroachment by the State, but at the same time the Government will have sufficient power to carry out its functions effectively.

Highlights of the draft constitution are as follows:

* An enforceable Declaration of Rights will protect all internationally-recognised human rights, socioeconomic as well as civil rights. Particular protection will be given to the rights of vulnerable groups such as women, children, disabled and detained people.

* There will be a bicameral legislature consisting of a National Assembly and a Senate. Both will be elective bodies (there will be no appointed members) and in each House half the members will be elected on a constituency basis and half by a system of proportional representation. This will give us the best of both electoral systems: close contact with local electorates and adequate representation of smaller parties.

* Parliament will be elected for a fixed five-year term, and each House will determine its own sittings. In this important respect, therefore, Parliament will be independent of the Executive.

* There will be a Parliamentary Appointments Committee to select candidates for appointment to constitutional posts through a fair and public selection process.

* There will be a non-executive President as Head of State, elected by Parliament. The Prime Minister will be Head of Government, and he or she will be elected through a nation-wide ballot for a five-year term though Parliament will have power to vote him or her out of office. Ministers will be appointed by the Prime Minister, not the President.

* The draft constitution will establish three main courts: a Constitutional Court to decide constitutional cases, a Supreme Court to deal with general appeals, and a High Court to deal with cases at first instance; there will also be magistrates courts. Special courts such as the Labour Court and the Administrative Court will be incorporated into the High Court as specialised divisions.

* Judges will be appointed by the President on the advice of an independent Judicial Services Commission. In the case of the Chief Justice and other judges appointed to preside over courts, however, the President will act on the advice of the Prime Minister in choosing from a list of candidates put forward by the Judicial Services Commission. The appointment of all judges will be subject to approval by the Senate.

* The security services the Defence Forces, the Police Service, the Prison Service and any intelligence services will be subject to civilian, and particularly parliamentary, scrutiny and control. The commanders of each service will be appointed by the President on the advice of an independent Security Services Commission, and their appointments will be subject to approval by the Senate.

* In addition to the Judicial Services Commission, the Public Service Commission and the Security Services Commission, there will be several other independent commissions an Independent Electoral Commission to conduct elections; a Human Rights Commission to foster human rights generally; a Gender and Anti-Discrimination Commission to ensure gender equality and prevent unlawful discrimination; a Truth, Justice, Reconciliation and Conflict Prevention Commission to provide remedies for victims of past human-rights abuses and to promote reconciliation; a Media Commission to protect media freedom; a Land Commission to administer State land and to deal with resettlement and issues of land tenure; and an Anti-Corruption Commission to deal with corruption in all spheres.

* There will be extensive devolution of power to the provinces, with each province having its own elected governor and legislature and its own public service and police service.

* Local government institutions urban and rural councils will also be recognised and given as much autonomy as is compatible with good governance.

Generally, the draft constitution attempts to capture the broad aspirations of the majority of the people in Zimbabwe while paying due regard to the views of minorities. The degree of consultation we undertook gives me the confidence to assert that the draft is a fair reflection of the people’s aspirations.

In preparing this draft constitution, the Law Society does not intend to subvert or interfere with the parliamentary constitution-making process being undertaken by COPAC. The draft is put forward as a proposal to assist COPAC in the preparation of its own draft. But bearing in mind the consultative process in which the Law Society engaged, I am sure that COPAC’s drafters will find that the Society’s draft encapsulates the views of the people of Zimbabwe.

I therefore confidently commend this draft constitution to COPAC, to Parliament and to the people of Zimbabwe.

Josephat Tshuma

Law Society President.